Read Microsoft Word - memo in opp to 2nd protective order FINAL.doc text version

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA STEVEN RUSHING VS BOARD OF SUPERVISORS OF THE UNIVERSITY OF LOUISIANA SYSTEM, ET.AL. MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER NOW INTO COURT, through undersigned counsel, comes plaintiff, Stephen Rushing, who respectfully submits the instant Memorandum in Opposition to Defendants' Motion for Protective Order. Law and Argument Plaintiff, a tenured professor, contends that defendants have adopted policies and procedures that directly prevent plaintiff from exercising his rights as a tenured faculty. Thus, plaintiff specifically objects to the following items included in defendants' proposed protective order: CASE NO. 06-CV-623 RET-SCR

II(a) ­ "The decision to grant tenure to Dr. Rushing; the arguments for and against granting tenure; which version of University rules, regulations and policies applied to the decision to grant tenure"

Plaintiff seeks discovery of the exact version of the university rules, regulations and policies that were used in granting him tenure. This information is vital for assessing what rights and obligations are associated with plaintiff's tenured status. This Court previously relied on Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92

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S.Ct. 2701, 2709 (1972), for the proposition that "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawrules or understandings that secure certain benefits and that support claims of entitlements to those benefits." Rec. Doc. 56, p. 12. The rules and regulations sought by plaintiff represent the "independent source" referred to in Roth, supra.

II(b) "Whether Dr. Rushing's appointment letter constitutes a binding contract;" Plaintiff's appointment letter represents his job description. Plaintiff contends that this letter has been used and abused by defendants for justifying its retaliatory deprivations of plaintiff's rights. Plaintiff must be allowed to conduct discovery as to his job description as well as the manner in which, and the reasons why, it has been modified throughout the years.

II(c) "Whether Dr. Rushing has either a contractual or due process right to file and pursue grievances, or whether he has a right to any particular grievance procedure;"

Plaintiff's grievances concern both matters of public and private concern. Some of those grievances challenge defendants' decisions regarding plaintiff's employment. Plaintiff must be allowed to perform discovery on whether he has the right to exhaust his administrative remedies, especially in light of certain requirements that such exhaustion occur. See Faragher v. City of Boca Raton, 524 U.S. 775, 806-807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Further, plaintiff claims he has a first amendment right to pursue

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grievances regarding matters of public concern, and he should be allowed to conduct discovery as to his right.

II(d) Plaintiff's grievances ##1-9 cited by defendants contain issues that defendants have refused to address and that were never resolved. They further contain matters of public concern and, once brought before defendants through the grievance process, they became protected activity for purposes of plaintiff's instant first amendment retaliation claims. Those grievances were suspended during the pendency of the state court proceedings. The contents of those grievances were discussed by the parties as late as 2005. Defendant temporarily reinstated some of these grievances at the end of the state court proceedings, only to suspend them again in 2006 when the instant litigation was filed.

II(e)-(l) any acts of retaliation, denial of free speech, denial of academic freedom, denial of religious freedom and denial of due process that occurred more than one year prior to filing the instant lawsuit, or prior to the 2002 amendment of the state court lawsuit. In the Fifth Circuit, the generally accepted time limit for discovery purposes is five years prior to the act of discrimination or retaliation, not one year as defendants suggest. See Lovoi v. Apple One Employment Services, 2000 U.S. Dist. LEXIS 18811, 2000 WL 1863522 (E.D.La. 2000); Cormier v. PPG Industries, Inc., 452 F.Supp. 594 (W.D.La. 1978); Gillum v. ICF Emergency Mgmt. Servs., L.L.C., 2009 U.S. Dist. LEXIS 60693 (M.D. La. July 16, 2009). In Gillum, supra, Magistrate Judge Noland presents an

extensive list of cases, both within our circuit and from other courts across the country, most of which accepted the five-year period for discovery. She reasons that "The U.S.

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Supreme Court has recognized that evidence relevant to a showing of pretext may include facts regarding the employer's treatment of the complainant during his employment, as well as the employer's general policy and practice with respect to employment of the protected class." Id., at 9, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

II(n) - Those matters fully adjudicated in Rushing vs Bd. Of Superv., 19th JDC, including plaintiff's lack of due process rights to the university grievance procedures. While the 19th JDC found that plaintiff lacks due process rights in this respect, and this Honorable Court previously found that the current 14th Amendment claim is barred by res judicata, the state court did not rule on whether the grievances filed by Mr. Rushing were frozen in retaliation to his previous protected actions. Thus, in terms of viewing the fact that defendants froze plaintiff's grievances and prohibited him from filing additional grievances as adverse action for purposes of a First Amendment retaliation claim, plaintiff's grievances and defendants' responses thereto are relevant.

Defendants' proposed protective order unduly limits the scope of the discovery process. Plaintiff respectfully requests that defendants' motion be denied. Respectfully submitted, /s/ Dan M. Scheuermann_____ Dan M. Scheuermann 600 America St. Baton Rouge, LA 70802 Tel: 225-344-9381 Fax: 225-344-9384 Email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that the foregoing was electronically filed via CM/ECF and that a copy thereof is being served upon counsel of record via the Court's electronic notification system. Baton Rouge, Louisiana, this 2nd day of March, 2010.

/s/ Dan M. Scheuermann_____ Dan M. Scheuermann

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